In 1990, the Pennsylvania Liquor Control Board (“LCB”) established the “Nuisance Bar Program” as a method of dealing with licensed establishments which were chronic offenders of the Liquor Code. In 1998, the program was expanded to allow the LCB to consider activity not only in the bar but activity within close proximity of the bar. The goal of the Nuisance Bar Program is to shut down licensed establishments that are determined to be a “nuisance” and to help licensees who are in danger of owning a “nuisance bar” change their practices to avoid being labeled as such.
Keeping an eye on bars generally and nuisance bars in particular is the joint task of the LCB and the Pennsylvania State Police. The LCB does not patrol bars looking for Liquor Code violations, that job is left to the Pennsylvania State Police Bureau of Code Enforcement (“PBCE”). The PBCE issues citations for a variety of reasons including: sales of alcohol to minors; sales to visibly intoxicated patrons; excessive noise; after-hour sales; drug activity; weapons violations; and lewd and immoral conduct. Once a citation is issued, the licensee is usually given the opportunity to execute a waiver of its rights and pay a fine, which is considered an adjudicated citation. If the licensee chooses not to execute a waiver, it has the right to challenge the citation and ask that the PBCE prove its case before the Office of Administrate Law Judge (“ALJ”). The ALJ is an autonomous division of the LCB and is responsible for conducting hearings regarding citations under the Liquor Code. Hearings before the ALJ are single judge proceedings tried without a jury that allow either party to present evidence and witnesses and permit the other party to cross examine or challenge evidence. The PBCE is represented by its chief counsel’s office and licensees are encouraged to have legal representation at the ALJ hearing.
When license renewals are reviewed the LCB examines the operational history of the licensed establishment. The LCB will object to the approval of a license renewal that has three or more adjudicated citations within the four-year licensing period. The Nuisance Bar Program facilitates the LCB’s refusal of license renewal when a licensee has abused its privileges through a pattern of violations or conduct that threatens the health and safety of the local community. The program seeks the input and partnership of local communities, law enforcement partners, government authorities and the General Assembly to help eliminate “problem bars” from communities. The Board typically objects to the renewal of more than 150 licenses annually, often under its statutory obligation to protect the safety, peace, health and welfare of the Commonwealth
When the LCB considers a licensed establishment a “nuisance” and refuses to renew its license or deny transfer, the licensee is entitled to appeal that decision to the Court of Common Pleas in the county where the licensed premises exists. Those appeals are heard before a Common Pleas Judge and the matter is between the licensee and the LCB directly. A county judge’s decision is binding on the PLCB; the licensee has the right to an appeal to an appellate court.
Renewal objections are also treated as bench trials. The LCB is represented by its chief counsel’s office and may present evidence and witnesses, including the agents from the PBCE to buttress its case. Licensees are encouraged to be represented by an attorney in order to protect their interests in the license. The presiding judge has the power to revoke the license.
Citations issued to licensees by the PBCE should be taken very seriously. It is critical for a licensee to know its rights and the risk associated with waiving any rights. It is strongly advised that licensees retain legal representation before waiving or challenging a citation or the LCB’s objection to renewal or transfer. The attorneys at BBC&B have been representing licensees for more than five decades and are well versed in the nuances of the Liquor Code and liquor license work generally. We stand ready to help.
— J. Ken Butera